In re Liquidation of Midland Ins. Co

A New York appellate court recently applied an “all sums” method, rather than pro rata, across successive policies for asbestos exposure losses. The court ruled that under New York law, the all sums approach was “generally required” under the 2016 Viking Pump, Inc. decision, 27 N.Y.3d 224, 260-61. In this case, the court also looked at the language of the specific excess policies at issue, which were follow-form policies that incorporated the non-cumulation clauses of the underlying policies issued by American Home Assurance Company. The court reasoned: The non-cumulation clauses plainly contemplate that multiple successive insurance policies can indemnify the insured for the same loss of occurrence… thereby rendering all sums the appropriate allocation method. Vertical exhaustion, the court stated, is consistent with an all sums allocation and required in this situation.